DHHR focus of federal class action suit

CHARLESTON – A child who was diagnosed with a hearing impairment was deprived treatment by a hearing specialist because the treatment was not covered by the West Virginia Medicaid Basic Health Plan.

Now, the child has been removed from the public school system and still has not received hearing and counseling services his providers have prescribed.

Another child suffers from asthma and significant allergies, for which he must take four separate medications that have to be renewed monthly.

However, when that same child developed a sinus infection in December, he was not able to fill his inhaler prescription. That is because of rules in the West Virginia Medicaid Basic Health Plan that only pay for four prescriptions each month per child.

Because a physician prescribed the child with a steroid and antibiotic for his infection, he had to do without his inhaler prescription, which cost $180.78.

Due to their problems with the West Virginia Medicaid Basic Health Plan, the mothers of both children have filed a class action lawsuit in federal court against West Department of Health and Human Resources Secretary Martha Walker.

They claim Walker implemented a revised Medicaid program that "illegally and arbitrarily places exclusions and quantitative limits on health services for Medicaid-eligible children in West Virginia."

The new system, initiated in Clay, Upshur and Lincoln counties in March 2007, is known as Mountain Health Choices. Since then, the program has been expanding statewide.

All new Medicaid recipients are automatically placed in Mountain Health Choices. Existing participants are placed in the program at the time of their eligibility re-determination date, according to the complaint.

Under Mountain Health Choices, recipients are enrolled in a Basic Benefit Plan.

But the plan contains a number of benefit exclusions and monetary caps, the suit states.

For example, weight management, nutrition education services and private duty nursing services are not covered.

Limitations include only four drug prescriptions per month, only 30 days per year of inpatient hospital psychiatric services, only 20 days per year of speech and related therapies, a maximum cost of $750 per year of vision services and only 25 sessions per year of chemical dependency and mental health services, according to the complaint.

In addition, the benefit plans are not explained in easy-to-understand language, the mothers claim.

"There is widespread confusion about Mountain Health Choices among families and Medicaid-participating physicians," the suit states.

In the case of the child with a hearing impairment, who is referred to only as D.W. in the suit, he was denied coverage without receiving a written notice.

"Defendant denied essential services to D.W. without notice or opportunity to be heard," the suit states.

The child who is taking four prescriptions per month is identified only as T.G., "the son a single working mother who works full time as a contract employee for the postal service."

T.G., who was denied his inhaler prescription in December and who suffers from asthma, "needs an inhaler at all times in case of an asthma attack," according to the complaint. "Without aid of an inhaler, if he has an attack, he must be taken directly to the hospital emergency room."

But when T.G. is required to receive medication in addition to his regular allergy and asthma medications, he has to decide which prescription not to fill in order to stay within his four-prescription limit.

"He must make difficult decisions about which medically necessary medications he will not be able to obtain," the suit states.

West Virginia's Medicaid program is in violation of federal Medicaid Early and Periodic Screening, Diagnostic and Treatment Provisions for children under the age of 21, the mothers claim.

Under the EPSDT provisions, periodic dental, vision and hearing services must be provided and states must arrange for corrective treatment, according to the complaint.

West Virginia's Medicaid program is also in violation of another federal statute that describes care and services provided under Medicaid coverage as being prescribed drugs, physical therapy and related services, home health services, etc., the suit states.

In the three-count suit, the mothers are asking for the case to be certified as class action and that the courts issue a declaratory judgment declaring the Mountain Health Choices program violates title XIX of the Social Security Act because of its failure to provide EPSDT services.

They are also seeking injunctive relief that Walker comply with federal provisions and a judgment of unspecified costs, plus attorneys' fees and other relief the court deems proper.

Bren J. Pomponio and Daniel F. Hedges of Charleston and Jane Perkins of National Health Law Program in Chapel Hill will be representing them.

U.S. District Court case number: 2:09-0060